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NPR's Nina Totenberg says federal courts could threaten Obama legacy

National Public Radio's legal affairs correspondent Nina Totenberg, delivering Elon Law's spring 2010 Bryan Leadership Lecture, said the Supreme Court had become more divided and more activist than at any time in recent memory, and that major policy objectives of the Obama administration could be dismantled in years ahead by federal courts largely populated by Republican era appointees.

Totenberg, who has reported on the Supreme Court for more than 30 years, said that a consistent division between the Court’s liberal and conservative justices has become the norm.

“The Roberts court so far is more fractured than any court in recent memory, has less consensus, fewer unanimous opinions, and lasting trends where almost a third of the court opinions were by a five to four margin,” Totenberg said.

Speaking at the Carolina Theatre in downtown Greensboro as part of Elon University School of Law’s Joseph M. Bryan Distinguished Leadership Lecture Series, Totenberg said the 2006-2007 term of the Supreme Court was the first full term featuring a new chief justice, the loss of Justice O’Connor, and two Bush-era appointees on the court.

“The result was an explosion of conservative decisions,” Totenberg said. “The court cut back at that time or effectively reversed prior decisions on abortion, campaign finance, trade relations, gender discrimination, and voluntary school desegregation. For conservatives it was pretty close to the best of times, and for liberals, or what passes for liberals on this court, it was pretty much the worst of times.”

Totenberg said decisions by the conservative majority on the court evidenced a more activist posture.

“My own view is that what we’re seeing today is the flip side of the Warren Court era, when the court was severely criticized for its so called liberal activism,” Totenberg said. “That bred a new generation of conservative activists who are often criticized as activists squared. Judicial activism, of course, is somewhat in the eye of the beholder. It is usually described as a willingness to strike down duly enacted laws, particularly federal laws. Until 1991, the Supreme Court struck down, on average, about one federal statute every two years, but from 1994 to 2005 the court struck down some 64 federal laws. And here’s the interesting thing: the justices least likely to invalidate federal statutes were the so-called liberals, while the most likely to strike down federal laws were in this batting order, Justice Clarence Thomas, followed by Justice Anthony Kennedy, followed by Justice Antonin Scalia, followed by Chief Justice Rehnquist. In short, Kennedy and the Court’s most conservative members.”

Totenberg said the appointments of Justice Alito, replacing Justice Sandra Day O’Connor, and Chief Justice John Roberts, replacing former Chief Justice William Rehnquist, are not likely to change the activist tendency among the conservative majority on the Court.

Judicial branch power in appellate and district courts

Totenberg also discussed the importance of judicial decisions on federal appellate courts and in federal district courts.

“There are currently some 125 judicial vacancies,” Totenberg said. “That’s very roughly one seventh of the entire federal judiciary, not yet at emergency levels but getting close.”

Comparing the rate of judicial nominations between the Obama and George W. Bush administrations, Totenberg said Obama had so far been slow to make nominations, with only 53 federal judges nominated for appellate and district courts, compared with 91 from the Bush administration over the same time period.

She also said the Senate has confirmed only six appeals court nominees and 11 district court nominees of the Obama administration, for a total of 17 judges, compared to a total of 39 judges confirmed by the Senate by March of President Bush’s second year.

“Of course, Democrats did stall on some of Bush appeals court nominees, but what’s noteworthy this time is the Republicans are stalling on nominees whether they are controversial or not,” Totenberg said. “Just a couple of weeks ago, the Senate unanimously confirmed one appeals court nominee, but first had to overcome a filibuster with a cloture vote. Did you hear me? There was a filibuster but nobody voted against this nominee. That is the pattern: Republican objections, delay tactics, and when there’s a vote, not much there. And the Democrats haven’t pushed it, they haven’t forced cloture votes most of the time because that takes time and effort - and the people who are paying the price for this are litigants and the judicial system. For all the judges I know of both parties, the behavior of both parties in this is frankly confounding.”

Totenberg said she thinks the Obama administration has not nominated judges in great numbers because the president’s priorities have been on enacting laws to transform health care, the financial system, and national energy and environmental policies.

“If and when these laws are passed, those who disagree have just one remaining route to stop them, its the courts,” Totenberg said. “If Congress, for example, passes a health care mandate or a cap on bonuses for bank officers at institutions still in hock to the government, I guarantee there would be Constitutional challenges to those provisions. And at least for now, all the appellate courts in this country, or practically all of them, are nominated by appointees of the previous Republican presidents.”

“Now, I’m not saying the Republicans are going to be unfair judges, and I understand why Republicans would want to slow-walk the Obama nominees, but for President Obama to leave his legislative accomplishments, whatever they are ultimately, in the hands of judges who are likely to fundamentally disagree with him about the role of government,and with little or no counterbalance, is ... puzzling,” Totenberg said.

Welcoming an audience of more than 600 law students and members of the public, Elon Law dean George R. Johnson, Jr. said the school was fortunate to have one of the nation’s most acclaimed journalists and correspondents visiting to share her insights.

Elon Law Dean George Johnson

“Nina Totenberg writes and speaks powerfully about legal and judicial affairs,” Johnson said. “Her commentary on National Public Radio and other media outlets are among the most thoughtful, penetrating, and accessible analyses of legal matters to be found anywhere.”

Introducing Totenberg, second-year law student and incoming Editor-in-Chief of the Elon Law Review, William Aycock said her reporting on the Supreme Court has helped to shape the nation’s understanding of the judicial branch.

“More than any other characteristic, Nina Totenberg’s career has been marked by courage,” Aycock said. “Courage to forge a path in a world where women were not yet welcome, courage to take on powerful interests and face the consequences, courage to stand up for her convictions. Since going to work for NPR in 1975 as Legal Affairs correspondent, she has helped educate Americans about the law, explain the significance of the High Court’s rulings and familiarize the public with the, often elusive, Justices. Her reporting has helped to shape the court itself.”

Earlier in the day, Totenberg met with students and faculty at Elon Law for a conversation about the Supreme Court and other legal and judicial affairs matters.

The Joseph M. Bryan Distinguished Leadership Lecture Series is an integral part of Elon University School of Law's commitment to develop lawyers who are also leaders. Endowed through a generous gift from the Joseph M. Bryan Foundation of Greensboro, N.C., the Distinguished Leadership Lecture Series brings accomplished leaders from a variety of disciplines to Elon to share their experiences and perspectives with students and faculty.